Frequently Asked Questions for J-1 Exchange Scholar Visa and J-1 Waiver

What is the purpose of J-1 visa?

J-1 visa is for a person coming to the United States as a student, researcher, professor, nonacademic specialist, physician, international visitor, camp counselor, au pair, or summer student in a travel/work program.

What is the period of stay of J (J-1 and J-2) visa?

The initial admission of an exchange visitor, spouse, and children may not exceed the period specified on Form DS-2019, plus a period of 30 days for the purpose of travel or for the period designated by the USCIS. A spouse or child (J-2) may not be admitted for longer than the principal (J-1) exchange visitor. J-1 exchange visitors are admitted for “duration of status “ to complete the programs reflected on Form DS-2019 and are not given a date certain on their I-94 Arrival/Departure record.

What is foreign residency requirement? How does it influence a J visa holder?

Some J-1 holders are subject to foreign residency requirement and must leave the United States after their visa are due. Any individual classified as a J-1 nonimmigrant who is subject to the foreign residence requirement and who has not received a waiver of the residence requirement is not eligible to change his or her nonimmigrant status within the United States, except when the individual applies to change to an A or G visa classification. The J-1 nonimmigrant who is subject to the foreign residence requirement is also barred from obtaining an H or L visa and is barred from applying for a K fiance visa or adjustment of status to permanent residence.

May a J-1 holder obtain a different nonimmigrant visa in a U.S. Consulate aboard?

Yes, except for H, L or K. Though precluded from changing status to another nonimmigrant category while in the United States, the J-1 nonimmigrant who is subject to the foreign residence requirement is permitted to obtain a nonimmigrant visa (other than H, L or K) at a U.S. Consulate abroad, if eligible.

Who is subject to the two year foreign residency requirement before they may change to certain other nonimmigrant visa categories or before they may obtain permanent residency?

The two-year foreign residency requirement is triggered where:

1. The exchange visitor's program was financed in whole or part by the U.S. government, or by the government of the person's nationality or country of last residence;
2. Exchange visitors possess skills particularly required by their own countries; and
3. Exchange visitors who came to the United States in order to receive graduate medical education or training.

The spouse and children of J-1 visa holder are also subject to the requirement.

On what condition may a waiver be provided?

Exchange visitors subject to the foreign residence requirement may receive a waiver of it on one of four bases:

1. A waiver may be requested by a United States governmental agency on behalf of the exchange visitor. This is usually couched in terms of being beneficial to the United States security interests or to that of the public good.
2. A waiver may be obtained when the foreign residence requirement would result in exceptional hardship to the U.S. citizen or permanent resident spouse or child.
3. If the exchange visitor can show that he or she would be subject to persecution in the home country on the basis of race, religion, political opinion, nationality, or membership.
4. The exchange visitor's home government issues a letter of “no objection “ to the exchange visistor's remaining in the United States (foreign medical graduates are not eligible for this waiver).

When might a government agency request a J waiver on behalf of an exchange visitor?

If a U.S. government agency thinks that required departure of the exchange visitor would be detrimental to a program or activity of interest to the agency, it might request a waiver on behalf of the exchange visitor.

Does the exchange visitor have to be employed in a government agency to obtain an “agency request “ J-waiver?

No. The exchange visitor can be employed by either a private employer or a government agency. Private or government employers sponsor a waiver to Department of Defense or Department of Health and Human Services, which will decide if a waiver is appropriate.

What is the procedure of a government “agency request “ J-waiver?

First of all, an employer has to sponsor a waiver and apply to a government agency, such as Department of Defense or Department of Health and Human Services. If a government agency deems appropriate, the waiver request will be generated by the it and be sent to the DOS for evaluation. USCIS makes the final determination on the waiver request after DOS makes a recommendation.

What kind of sponsorship may a J-1 physician obtain for the purpose of J Waiver?

Several agencies have developed special guidelines and procedures for handling sponsorship requests by J-1 physicians. One category of sponsorship is based on the existence of an employer-employee relationship between the sponsor and the J-1 physician, for example, the Veterans Administration's J-1 physician sponsorship program. Another category of sponsorship is based on the physician's academic research in a health area of perceived importance to the United States, for example, the Department of Health and Human Services' program. Other agencies agree to sponsor J-1 physicians based on the commitment of the J-1 physicians to work in medically underserved areas, for example, the Appalachian Regional Commission and the U.S. Department of Agriculture (USDA).

What constitutes “exceptional hardship “ for the purpose of J waiver?

To obtain J waiver, the exchange visitor must demonstrate that an unforeseeable hardship has arisen, and not just one attendant to the imposition of the foreign residence requirement. One example of possible “exceptional hardship “ is medical problems, as long as the medical condition is not a minor one, or one that could be cared for adequately in the exchange visitor's home country. Possible persecution of the citizen or permanent resident family members has been a factor in hardship determinations, as have factors indicating a sharp difference in cultural customs or mores.

Is separation of a U.S. citizen spouse from the J-1 holder constitutes “exceptional hardship “?

Probably not. The separation of a U.S. citizen spouse from the J-1 holder, or the hardship to the spouse that would arise from living in a third-world country would be considered a normal hardship that could be foreseen at the time the J-1 holder entered the United States or at the time the couple married. Hardship has been found for economic reasons when it could be shown that the couple would not be able to support the family unit abroad because of the lack of suitable employment, and cannot afford to maintain two separate households; the presence of U.S. citizen children in these cases appears to enhance the hardship showing.

How can an exchange visitor be granted with J Waiver by obtaining a “no objection “ letter?

When an exchange visitor is subject to two year foreign residency requirement because his/her skill area is included on the home country's skills list or the exchange visitor received financing from his/her home country and a no objection statement is issued, the waiver is usually granted. Waivers are routinely granted in these situations because the home country does not object to the exchange visitor's stay in the United States despite the fact that his/her skill area is listed in the country's skills list or that it assisted in financing the exchange visitor's training or education in the United States.

However, if the exchange visitor has received funding from the U.S. government rather than from his/her home government, it is difficult to obtain this type of waiver. When U.S. government funding is involved, the funding agency or program sponsor is consulted to determine whether the waiver should be granted. Often, the U.S. government agency, such as AID, opposes the waiver request and this opposition is usually persuasive to the DOS in making its recommendation to USCIS on the waiver.

What is the procedure of applying for J Waiver?

The waiver application process involves several steps. Applicants must first file the J-1 Visa Waiver Recommendation Application, Form DS-3035, with the DOS. The DOS now requires individuals completing Form DS-3035 to do so online. When the form is completed online, the applicant receives a data bar code page, which he/she prints and then submits with the processing fee and other required documents. The applicant must then submit all requested documents and required letters to the Waiver Review Division. DOS recommends that the applicant submit all the requested documents at the same time. Some documents, such as a “no objection “ statement from the applicant's home country or a request from a government agency, must still be submitted directly to the Waiver Review Division by the embassy (in “no objection cases “) or the government agency (in agency request cases). At the conclusion of the review process, the Waiver Review Division will forward its recommendation directly to the USCIS. The USCIS rarely denies a waiver if the State Department has made a favorable recommendation. Such a denial may be appealed to the USCIS's Administrative Appeals Office.

What documents must be submitted along with the “no objection waiver application?

In “no objection “ cases, a statement must be received from the exchange visitor's home country. Most embassies and foreign consulates in the United States are familiar with “no objection “ statements and usually have specific personnel assigned to deal with such requests. The home country's statement must be sent to the DOS through official channels.

What documents must be submitted along with the “agency request “ J Waiver application?

With regard to interested government agency waivers, applicants must submit evidence of agency sponsorship after such sponsorship has been obtained. Each government agency that might have an interest in seeking a waiver for an exchange visitor has its own procedures and standards of review through which the agency's interest can be invoked, and some even have their own forms and waiver review boards. As a result, the type of information and documentation required to be submitted with the request for sponsorship will vary from agency to agency.

What documents must be submitted along with the “exceptional hardship “ J Waiver application?

Hardship and persecution waivers require filing with the USCIS on Form I-612 along with evidence supporting alleged hardship or persecution claims. The application is filed with the Service Center with jurisdiction over the applicant's residence. If the USCIS makes a favorable determination on the application, it forwards the file to the DOS, along with its favorable recommendation on Form I-613.

How do I determine if my exchange visitor program was funded by the U.S. Government, my government, or an international organization that received funding from the U.S. Government or my government?

You should consult with your responsible program officer for assistance in making this determination. If your participation in an exchange visitor program was funded either in whole or in part by the U.S. Government, your government, or an international organization that received funding from the U.S. Government or your government, then you are subject to the two-year home-country physical presence requirement.

How should I file J Waiver online?

You should follow these steps to file J Waiver online:

1. Complete the Online J Visa Waiver Recommendation Application: Complete the application, Form DS-3035, available on the J Visa Waiver Online webpage, following the online instructions. You must use the online form. No other version of Form DS-3035 will be accepted. If you submit a version of Form DS-3035 other than the online form, your application will be returned to you without the processing fee, which is non-refundable.
2. Mail your Waiver Application and Fee Payment:the processing fee is $120.
3. Submit Supporting Documents.
4. Check your Waiver Request status and update your contact information.
5. Provide more information if the Waiver Review Division needs more information from you.
6. Department of State recommendation and final determination by USCIS.

What is the processing time for J Waiver?

Processing times for waiver recommendations by the Department of State, Waiver Review Division vary depending on the basis under which you request a waiver of the two-year home-country physical presence requirement.

For No Objection waiver, the processing time is 6 to 8 weeks. For Agency waiver, the processing time is 4 to 8 weeks. For persecution and extremely hardship waiver, the processing time is 3 to 4 months. For Conrad Program waiver, the processing time is 4 to 6 weeks.

My waiver recommendation application was denied. Can I ask for reconsideration or appeal the decision?

No. Waiver recommendation applications are thoroughly considered, and the Waiver Review Division does not have a policy to reconsider applications once a final determination has been made. Also, there is no policy for you to appeal the determination. You may, however, reapply using another basis for waiver, if another basis applies to your situation.

Why would a recommendation application be denied by the Waiver Review Division?

Recommendation applications are denied when the reasons given for requesting the waiver do not outweigh the program and foreign policy considerations of the exchange visitor program. For this reason, waiver recommendation applications from exchange visitors who received U.S. Government funding are generally denied.

My waiver recommendation application was denied, but I have new information that may affect my eligibility? Can I send it to the Waiver Review Division and ask for reconsideration of my denied application?

With one exception, a denied waiver recommendation application cannot be reconsidered or appealed, and you should not apply again under the same basis as used in your original waiver request. The one exception is if you requested a waiver based on persecution or exceptional hardship to a U.S. citizen (or legal permanent resident) spouse or child, and you have new relevant information which you believe may result in a different decision. You may apply again to USCIS. However, please be aware that you will need to submit a new waiver recommendation application, including all documents listed in Steps 1 through 3 of the Instructions, and pay the processing fee.